Corporal Robinson was carrying on an affair with the wife of a fellow Marine who was deployed to Iraq. The appellant’s commander discovered the affair and ordered Corporal Robinson to have no further contact with her. Two days after receiving the order, Corporal Robinson engaged in sexual intercourse with the woman at her residence on the military installation. For the first time on appeal, the appellant alleged the commander who issued the order was disqualified from convening the court-martial because it raised “at least the appearance that [LtCol Knapp] improperly influenced the court-martial proceedings, therefore disqualifying him as a convening authority."
The NMCCA looked for evidence that, “under the particular facts and circumstances... a reasonable person would impute to him a personal feeling or interest in the outcome of the litigation. United States v. Jeter, 35 M.J. 442 (C.M.A. 1992) (quoting United States v. Gordon, 2 C.M.R. 161, 166 (C.M.A. 1952))." The NMCCA found no evidence that LtCol Knapp had a personal feeling or interest in the outcome of the case and affirmed.
In footnote 1, the court found "unacceptable" appellate defense counsel’s failure “to cite most of the pertinent case law regarding whether the convening authority in this case is an accuser. We remind all counsel that they are ‘not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities.’ Judge Advocate General Instruction 5803.1C, Rule 3.3, Comment 2 (9 Nov 2004).”
United States v. Robinson, NMCCA 200602201 (N-M. Ct. Crim. App. Jun. 6, 2007)
29 June 2007
New CAAF Grants
After a slow start, CAAF has picked up the pace of granting petitions for review for next term. In a Daily Journal entry for 28 June, the Court noted that petitions had been granted in the following cases:
(1) No. 07-0229/NA. U.S. v. Laprie D. TOWNSEND. CCA 200501197. Review granted on the following issue: Whether the military judge erred when he denied Appellant's challenge for cause against lieutenant [B].
The NMCCA summarized the facts of the voir dire as follows:
(2) No. 07-0412/AR. U.S. v. Kerry T. WRIGHT II. CCA 20051233. Review was granted on the following issue: Whether the Army Court Of Criminal Appeals erred in finding appellant's plea of guilty to the specification of charge I and to charge I, false official statement, provident when the statement in question was not, in fact, false.
I could not find the ACCA opinion on its website.
(3) No. 07-0553/NA. U.S. v. Christopher A. BOLSINS. CCA 200602408. Review was granted on the following issue: Whether the action of the Court of Criminal Appeals in affirming a Clause 2 (service discrediting conduct) offense under Article 134, UCMJ, after it found charged Clause 3 (crime and offense not capital) offense to be improvident, added an element to the offense in contravention of Apprendi v. New jersey, 530 U.S. 466 (2000), Jones v. United States, 526 U.S. 227 (1999), and Schmuck v. United States, 489 U.S. 705 (1989).
Not sure of the facts as I couldn’t find the NMCCA opinion on this case.
(1) No. 07-0229/NA. U.S. v. Laprie D. TOWNSEND. CCA 200501197. Review granted on the following issue: Whether the military judge erred when he denied Appellant's challenge for cause against lieutenant [B].
The NMCCA summarized the facts of the voir dire as follows:
The individual voir dire of LT B provided the following information about that member. First, LT B had attended the non-lawyer legal officer course; however, he would follow the military judge’s instructions even if they differed from what he learned in his previous training. Second, at the time of trial, LT B was attending law school and was taking a criminal law class, in which he was studying the concepts of self-defense, the use of force, the theories of intent, and cooling-off period. However, he stated that he could follow the military judge’s instructions even if they differed from what he learned at law school and from his own personal experience. Third, LT B hoped to become a criminal prosecutor, but that didn’t influence him or bias him toward the prosecution. He stated that the accused had to be proven guilty beyond a reasonable doubt. Fourth, LT B’s father is in law enforcement and LT B had a healthy respect for law enforcement personnel. However, he would follow the military judge’s instruction to use the same factors when weighing the credibility of a Naval Criminal Investigative Service (NCIS) Agent as he would any other witness. Fifth, LT B had high respect for military defense counsel because they were officers and therefore had high ethics and morals. LT B had less respect for defense counsel depicted on television and those out in the civilian world. Record at 216-38.United States v. Townsend, NMCCA 200501197 (N-M. Ct. Crim. App. Jan. 12, 2007). Apparently the defense counsel in this case was a military officer.
(2) No. 07-0412/AR. U.S. v. Kerry T. WRIGHT II. CCA 20051233. Review was granted on the following issue: Whether the Army Court Of Criminal Appeals erred in finding appellant's plea of guilty to the specification of charge I and to charge I, false official statement, provident when the statement in question was not, in fact, false.
I could not find the ACCA opinion on its website.
(3) No. 07-0553/NA. U.S. v. Christopher A. BOLSINS. CCA 200602408. Review was granted on the following issue: Whether the action of the Court of Criminal Appeals in affirming a Clause 2 (service discrediting conduct) offense under Article 134, UCMJ, after it found charged Clause 3 (crime and offense not capital) offense to be improvident, added an element to the offense in contravention of Apprendi v. New jersey, 530 U.S. 466 (2000), Jones v. United States, 526 U.S. 227 (1999), and Schmuck v. United States, 489 U.S. 705 (1989).
Not sure of the facts as I couldn’t find the NMCCA opinion on this case.
28 June 2007
Courts of Criminal Appeals
(1) The NMCCA has reported 15 new cases on their web site. This is the first NMCCA posting of decisions in about 45 days.
(2) On 25 June, the AFCCA released its opinion in United States v. Miller, Misc. Dkt. 2007-02 (A.F. Ct. Crim. App. Jun. 25, 2007). This was an Article 62 appeal after the military judge suppressed a positive urinalysis and the accused's confession drug charges against the accused because (1) a written memorandum directing the accused to provide a urine specimen was invalid, and (2) the installation’s standing urinalysis program as applied to the accused did not amount to an order for inspection. The accused was an reservist assigned to an Air Reserve base. The base's urinalysis program did not meet the legal standards for inspection testing under the Air Force instruction and Mil. R. Evid. 313. The AFCCA denied the Government appeal.
(2) On 25 June, the AFCCA released its opinion in United States v. Miller, Misc. Dkt. 2007-02 (A.F. Ct. Crim. App. Jun. 25, 2007). This was an Article 62 appeal after the military judge suppressed a positive urinalysis and the accused's confession drug charges against the accused because (1) a written memorandum directing the accused to provide a urine specimen was invalid, and (2) the installation’s standing urinalysis program as applied to the accused did not amount to an order for inspection. The accused was an reservist assigned to an Air Reserve base. The base's urinalysis program did not meet the legal standards for inspection testing under the Air Force instruction and Mil. R. Evid. 313. The AFCCA denied the Government appeal.
Friends
On 28 June, the European edition of Stars and Stripes reported that last week a flight surgeon from Ramstein Air Base, Germany, pled guilty at a court-martial to possession of cocaine and ecstasy . German customs agents at the Swiss-German border discovered the drugs during a routine inspection on the train Major ChristopherDrew was riding. Major Drew told investigators that he was carrying the drugs for his friends. Major Drew was sentenced to a dishonorable discharge and confinement for 20 days.
25 June 2007
CAAF Reassesses Sentence
In United States v. Resch, No. 06-0863/AR (C.A.A.F. Jun. 22, 2007), a military judge accepted the accused's guilty plea to larceny and breaking restriction. The accused also pled guilty to an unauthorized absence, but the military judge convicted him of the charged offense of desertion. The CAAF held that the military judge improperly considered the matters presented during the providence inquiry to unauthorized absence in his decision to convict the accused of desertion. Judge Stucky dissented in part.
Judge Stucky objects to two parts of the majority opinion: (1) the assertion that the accused did not know the judge was going to consider matters in the stipulation in determining if the accused was guilty of the greater offense of desertion; and (2) the military judge improperly considered the accused's statements during the providence inquiry to find the accused guilty of desertion.
Judge Stucky points out that the stipulation specifically noted that all matters included in it, and the several other documents attached to the stipulation, were admissible both for the providence inquiry and at trial. During that providence inquiry, the accused raised several matters in extenuation and mitigation of his absence which might militate against finding him guilty of desertion. The trial counsel smelled a rat and sought confirmation that the judge would not use the providence inquiry to determine Appellant's guilt on the greater offense of desertion. Trial counsel noted that the accused had not been subject to cross-examination during the providence inquiry and that it was improper to consider such matters in a trial on the merits. The defense counsel pleaded with the judge to consider it and went so far as to argue that he could even consider it to establish the elements of the offense. The judge overruled the trial counsel's objection and stated he would consider the providence inquiry. That, Judge Stucky argues, is invited error, and we don't reward an accused who convinces a judge to err.
This is clearly invited error. I doubt the defense counsel had any notion that he was convincing the judge to screw up. He or she just wanted to get the defense before the judge without subjecting the client to cross-examination. And the trial counsel understood exactly what was happening. Alas, the appellant's victory is a hollow one. The Court affirmed the sentence.
There is another issue that neither the majority nor the dissent discusses -- confirmation of the sentence. The only mention of the sentence is as follows:
The CCAs clearly have the authority to reassess a sentence. Article 66(c), UCMJ. But if a CCA had affirmed the sentence in the words used by CAAF in this decision, the CAAF would have set it aside and returned it for compliance with United States v. Suzuki, 20 M.J. 248 (C.M.A. 1985) and United States v. Sales, 22 M.J. 305 (C.M.A. 1986). In those cases, the Court held that when a court of criminal appeals reassesses a sentence due to prejudicial error, "it must assure that the sentence is no greater than that which would have been imposed if the prejudicial error had not been committed." Suzuki, 20 M.J. at 249. Evidently, the CAAF doesn't have to do that.
Of course, the Suzuki/Sales rule is one of those rules Chief Judge Everett made up without citation to statute or case law. Instead, he notes that "[o]nly in this way can the requirements of Article 59(a), UCMJ, 10 U.S.C. 859, be reconciled with the Code provisions that findings and sentence be rendered by the court-martial, see Articles 51 and 52, UCMJ, 10 U.S.C. §§ 851 and 852, respectively." Suzuki, 20 M.J. at 249. But that is an argument the Supreme Court specifically rejected almost 30 years earlier.
As has been expressed at CAAFlog, the Suzuki/Sales rule doesn't make a lot of sense. Court members, especially in today's world with so few contested cases, often have little experience in sentencing. Especially under these circumstances, its hard to argue with the Supreme Court -- no one could say what the court martial would have done absent the error. It might be a different story if the CCA was guessing what a judge would have done.
Regardless, it appears that the CAAF is claiming the the authority to reassess a sentence and doesn't have to explicitly state that they have complied with Suzuki/Sales. It is also surprising that CAAF refuses to grant to the judges on the CCAs the same presumption that they give to trial judges -- that they know and apply the law correctly.
Judge Stucky objects to two parts of the majority opinion: (1) the assertion that the accused did not know the judge was going to consider matters in the stipulation in determining if the accused was guilty of the greater offense of desertion; and (2) the military judge improperly considered the accused's statements during the providence inquiry to find the accused guilty of desertion.
Judge Stucky points out that the stipulation specifically noted that all matters included in it, and the several other documents attached to the stipulation, were admissible both for the providence inquiry and at trial. During that providence inquiry, the accused raised several matters in extenuation and mitigation of his absence which might militate against finding him guilty of desertion. The trial counsel smelled a rat and sought confirmation that the judge would not use the providence inquiry to determine Appellant's guilt on the greater offense of desertion. Trial counsel noted that the accused had not been subject to cross-examination during the providence inquiry and that it was improper to consider such matters in a trial on the merits. The defense counsel pleaded with the judge to consider it and went so far as to argue that he could even consider it to establish the elements of the offense. The judge overruled the trial counsel's objection and stated he would consider the providence inquiry. That, Judge Stucky argues, is invited error, and we don't reward an accused who convinces a judge to err.
This is clearly invited error. I doubt the defense counsel had any notion that he was convincing the judge to screw up. He or she just wanted to get the defense before the judge without subjecting the client to cross-examination. And the trial counsel understood exactly what was happening. Alas, the appellant's victory is a hollow one. The Court affirmed the sentence.
There is another issue that neither the majority nor the dissent discusses -- confirmation of the sentence. The only mention of the sentence is as follows:
The decision of the United States Army Court of Criminal Appeals as to the findings of guilty of desertion terminating on March 17, 2003 is reversed and that specification and charge are dismissed. A finding of guilty of unauthorized absence in violation of Article 86, UCMJ, terminating on January 22, 2003, and the remaining findings and sentence are affirmed.In order to affirm the sentence after finding error, the CAAF must have reassessed the sentence. Where does the authority to do so come from? What standard does the Court apply?
The CCAs clearly have the authority to reassess a sentence. Article 66(c), UCMJ. But if a CCA had affirmed the sentence in the words used by CAAF in this decision, the CAAF would have set it aside and returned it for compliance with United States v. Suzuki, 20 M.J. 248 (C.M.A. 1985) and United States v. Sales, 22 M.J. 305 (C.M.A. 1986). In those cases, the Court held that when a court of criminal appeals reassesses a sentence due to prejudicial error, "it must assure that the sentence is no greater than that which would have been imposed if the prejudicial error had not been committed." Suzuki, 20 M.J. at 249. Evidently, the CAAF doesn't have to do that.
Of course, the Suzuki/Sales rule is one of those rules Chief Judge Everett made up without citation to statute or case law. Instead, he notes that "[o]nly in this way can the requirements of Article 59(a), UCMJ, 10 U.S.C. 859, be reconciled with the Code provisions that findings and sentence be rendered by the court-martial, see Articles 51 and 52, UCMJ, 10 U.S.C. §§ 851 and 852, respectively." Suzuki, 20 M.J. at 249. But that is an argument the Supreme Court specifically rejected almost 30 years earlier.
No one could say what sentence the court-martial would have imposed if it had found petitioner guilty only of attempted rape. But Congress avoided the necessity for conjecture and speculation by placing authority in the board of review to correct not only the findings as to guilt but the sentence as well.Jackson v. Taylor, 353 U.S. 569, 579 (1957).
As has been expressed at CAAFlog, the Suzuki/Sales rule doesn't make a lot of sense. Court members, especially in today's world with so few contested cases, often have little experience in sentencing. Especially under these circumstances, its hard to argue with the Supreme Court -- no one could say what the court martial would have done absent the error. It might be a different story if the CCA was guessing what a judge would have done.
Regardless, it appears that the CAAF is claiming the the authority to reassess a sentence and doesn't have to explicitly state that they have complied with Suzuki/Sales. It is also surprising that CAAF refuses to grant to the judges on the CCAs the same presumption that they give to trial judges -- that they know and apply the law correctly.
Death of a Daughter
The appellant was convicted of the unpremeditated murder of her daughter by swinging her around and striking her head against a wall, and other offenses. United States v. Harrow, No. 06-0474/AF (C.A.A.F. Jun. 22, 2007). Judge Ryan had the task of answering all 6 issues on which the Court granted review:
(1) A witness who states that he does not remember or recall facts he related in a former statement may be impeached with a prior inconsistent statement. Citing United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993); United States v. Meghadi, 60 M.J. 438, 444 (C.A.A.F. 2005).
(2) The Court somewhat tepidly endorsed the Supreme Court's decision in Mathews v. United States, 485 U.S. 58, 64-65 (1988)): “A simple plea of not guilty . . . puts the prosecution to its proof as to all elements of the crime charged . . . .” Therefore the Government has a right to put on Mil. R. Evid. 404(b) evidence to show intent, even if the accused is not contesting that element of the offense.
(3) Profile Evidence. “Profile evidence is evidence that presents a characteristic profile or trait of an offender, and then places the accused’s personal characteristic or trait within that profile as proof of guilt. United States v. Rynning, 47 M.J. 420, 422 (C.A.A.F. 1998).” The Court then cited to United States v. Banks for the proposition that
The Court concluded that two aspects of the Government expert’s testimony were error because they are focused on characteristics of the abuser, as opposed to characteristics of the child: (1) “the statements that the most common person to fatally abuse a child is a biological parent, and [(2)] the statement that the most common trigger for baby shakings is persistent crying.”
I am at a loss as to how (2) focuses on the characteristics of the accused and then places the accused's character trait within that profile.
This was very harmless error -- only the accused or the girl's father could have done it, so they both fit within the profile.
(4) The appellant claimed her plea to defrauding an insurance company for damages to an automobile was improvident.
(6) Post-trial and appellate delay. Error in length of time from trial to AFCCA decision (case was sent back twice to fix the promulgating order), but no prejudice.
Chief Judge Effron had reservations with the majority's rationale in answering questions 1 and 3, but concurred in determining any error was harmless.
(1) A witness who states that he does not remember or recall facts he related in a former statement may be impeached with a prior inconsistent statement. Citing United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993); United States v. Meghadi, 60 M.J. 438, 444 (C.A.A.F. 2005).
(2) The Court somewhat tepidly endorsed the Supreme Court's decision in Mathews v. United States, 485 U.S. 58, 64-65 (1988)): “A simple plea of not guilty . . . puts the prosecution to its proof as to all elements of the crime charged . . . .” Therefore the Government has a right to put on Mil. R. Evid. 404(b) evidence to show intent, even if the accused is not contesting that element of the offense.
(3) Profile Evidence. “Profile evidence is evidence that presents a characteristic profile or trait of an offender, and then places the accused’s personal characteristic or trait within that profile as proof of guilt. United States v. Rynning, 47 M.J. 420, 422 (C.A.A.F. 1998).” The Court then cited to United States v. Banks for the proposition that
"generally, use of any characteristic 'profile' as evidence of guilty or innocence in criminal trials is improper. 36 M.J. 150, 161 (C.M.A. 1992). Such evidence is improper because it treads too closely to character evidence offered to show than an accused acted in conformity with that character and committed the act in question, evidence prohibited under M.R.E. 404(b). See Banks, 36 M.J. at 161.Banks actually relied on Mil. R. Evid. 404(a)(1), not 404(b).
The Court concluded that two aspects of the Government expert’s testimony were error because they are focused on characteristics of the abuser, as opposed to characteristics of the child: (1) “the statements that the most common person to fatally abuse a child is a biological parent, and [(2)] the statement that the most common trigger for baby shakings is persistent crying.”
I am at a loss as to how (2) focuses on the characteristics of the accused and then places the accused's character trait within that profile.
This was very harmless error -- only the accused or the girl's father could have done it, so they both fit within the profile.
(4) The appellant claimed her plea to defrauding an insurance company for damages to an automobile was improvident.
We reject Appellant’s suggestion that the military judge’s failure to elicit how Appellant “knew it was her representation that deceived the insurance company,” or “why her misrepresentation was an important factor in the insurance company’s decision to pay,” or “when the $729.65 was paid by the insurance company to Airman Hill,” alone or together, create any basis, let alone a substantial basis, in law or fact for questioning the sufficiency of the plea to this offense. See United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996) (declining to speculate post-trial on factual matters that might have been contested at trial in the context of examining whether(5) Despite the fact the appellant was an E-1, in reassessing her sentence the AFCCA ordered her reduced to E-1. Error, but no prejudice.
a guilty plea was provident).
(6) Post-trial and appellate delay. Error in length of time from trial to AFCCA decision (case was sent back twice to fix the promulgating order), but no prejudice.
Chief Judge Effron had reservations with the majority's rationale in answering questions 1 and 3, but concurred in determining any error was harmless.
23 June 2007
Hitler, bin Laden, and Saddam
In United States v. Erickson, No. 06-0715/AF (C.A.A.F. 22 Jun. 2007), the Court was faced with a sentencing argument in which the trial counsel invoked the names of Hitler, Saddam Hussein, and Osama bin Laden. Trial Counsel was trying to set up a dichotomy between the evil that is clear, present, and obvious and evil that is hidden. His point was that hidden evil, such as the accused sexually molesting his two daughters and then ordering them not to tell anyone, is worse than open and notorious evil. Appellant did not object to this argument. The military judge sentenced the accused to life in prison with the opportunity for parole. The Air Force Court of Criminal Appeals reviewed for plain error. It held the error was plain and obvious, but did not prejudice the sentence.
On appeal at CAAF, the only question was whether the obvious error, as found by the AFCCA, was prejudicial. All five judges agreed there was no prejudice. Judge Stucky, joined by Judge Baker, concurred but criticized the majority’s rationale.
Judge Erdmann analyzed this case using the three-part test that he developed in United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005), to determine whether a prosecutor’s findings argument in a members trial was prejudicial. The test looked at the severity of counsel’s misconduct, the military judge’s curative measures (normally instructions to the members), and the weight of the evidence supporting the accused’s conviction. Judge Erdmann concluded that, while the second Fletcher factor “adds little to the analysis in a judge alone trial, there is no reason not to apply the first and third factors in that context.” The majority concluded that the weight of the evidence for a substantial sentence in this case -- including life in prison with the opportunity for parole -- persuasive. “We find that the weight of evidence clearly supports the Court of Criminal Appeals’ determination that Erickson would have received the same sentence irrespective of trial counsel’s improper comments.”
Judge Stucky correctly points out that it doesn’t make much sense to apply Fletcher, or even the first and third Fletcher factors, in a judge alone case. There is a presumption in law that the military judge understands and applies the law correctly. One would expect that to overcome the presumption an appellant would have to show something in the record to suggest that the judge either didn’t know the law or didn’t apply it correctly. But if you applied Judge Erdmann’s test, the presumption apparently may be overcome if the prosecutor’s misconduct is severe and the weight of the evidence is less than overwhelming. And if curative measures “add little to the analysis,” it suggests a truly absurd result: The military judge couldn’t cure the error by stating she wouldn’t consider the argument. I realize this is just a case of sloppy draftmanship, but you have to wonder why the majority didn’t fix their opinion when faced with the concurring opinion.
Perhaps too much pride of authorship?
It appears none of the judges was impressed with the appellant's argument that his sentence was greater than normal in a child sexual abuse case. Judge Erdmann eloquently explains why this was not the normal child sexual abuse case. He writes of the severe trauma and emotional scarring that the appellant inflicted on his entire family. Just read what the appellant did to his younger daughter:
On appeal at CAAF, the only question was whether the obvious error, as found by the AFCCA, was prejudicial. All five judges agreed there was no prejudice. Judge Stucky, joined by Judge Baker, concurred but criticized the majority’s rationale.
Judge Erdmann analyzed this case using the three-part test that he developed in United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005), to determine whether a prosecutor’s findings argument in a members trial was prejudicial. The test looked at the severity of counsel’s misconduct, the military judge’s curative measures (normally instructions to the members), and the weight of the evidence supporting the accused’s conviction. Judge Erdmann concluded that, while the second Fletcher factor “adds little to the analysis in a judge alone trial, there is no reason not to apply the first and third factors in that context.” The majority concluded that the weight of the evidence for a substantial sentence in this case -- including life in prison with the opportunity for parole -- persuasive. “We find that the weight of evidence clearly supports the Court of Criminal Appeals’ determination that Erickson would have received the same sentence irrespective of trial counsel’s improper comments.”
Judge Stucky correctly points out that it doesn’t make much sense to apply Fletcher, or even the first and third Fletcher factors, in a judge alone case. There is a presumption in law that the military judge understands and applies the law correctly. One would expect that to overcome the presumption an appellant would have to show something in the record to suggest that the judge either didn’t know the law or didn’t apply it correctly. But if you applied Judge Erdmann’s test, the presumption apparently may be overcome if the prosecutor’s misconduct is severe and the weight of the evidence is less than overwhelming. And if curative measures “add little to the analysis,” it suggests a truly absurd result: The military judge couldn’t cure the error by stating she wouldn’t consider the argument. I realize this is just a case of sloppy draftmanship, but you have to wonder why the majority didn’t fix their opinion when faced with the concurring opinion.
Perhaps too much pride of authorship?
It appears none of the judges was impressed with the appellant's argument that his sentence was greater than normal in a child sexual abuse case. Judge Erdmann eloquently explains why this was not the normal child sexual abuse case. He writes of the severe trauma and emotional scarring that the appellant inflicted on his entire family. Just read what the appellant did to his younger daughter:
Erickson abused the younger daughter starting when she was five and continuing until she was ten. He had sex with her as often as several times a day; had oral sex with her; attempted anal sex; fondled and kissed her; took showers and baths with her; penetrated her with a dildo; showed her pornographic videos; placed her in sexual situations with her brother and the family dog; took naked pictures of her; and had phone sex with her.
22 June 2007
Sodoku in Court?
United States v. Moran, No. 06-0207/AF (C.A.A.F. Jun. 22, 2007) is one of those stranger than fiction cases. The appellant was suspected of using controlled substances. Investigators asked him to consent to provide body hair for testing. He refused. The investigators eventually obtained a search authorization but the appellant had gone to see his attorney. When he finally returned, his body was hairless; he apparently shaved off all of his body hair. Trial counsel asked questions of three witnesses that invoked responses revealing the appellant had invoked his constitutional rights.
To Agent TWB, the trial counsel asked, under what authority was the AFOSI asking for the hair specimen from the appellant. TWB replied: “Initially we tried consent. And he didn’t consent to . . . us collecting [his] body hair.”
To former Agent RF, the trial counsel asked if they collected any hair. Agent RF said that, after they obtained a search authorization, they went to see the appellant’s first sergeant. The first sergeant told them the appellant was en route to see his attorney. They asked the first sergeant to call him and tell him to turn around. “He allowed Airman Moran to continue to see his -- see his attorney.”
The trial counsel also asked RF what the appellant’s explanation for shaving off all his hair was. The agent didn’t ask. Not deterred by what he knew would be the answer, the trial counsel plunged onward: “You didn’t inquire?” RF responded: "The reason I didn’t inquire was I felt that was an incriminating question and . . . he’d already asked for counsel.”
The trial counsel asked a local police officer questions about an accident in which the appellant was involved. The officer said that he offered the appellant a consent form to draw blood, but he refused to sign it.
In closing argument, the trial counsel offered the following:
All 5 judges decide the trial counsel's argument was error and assume without deciding that the witness testimony was also error. Nevertheless, any error was harmless beyond a reasonable doubt. Chief Judge Effron and Judge Erdmann write separately to voice concerns over matters in Judge Baker’s decision that they think are unnecessary for the resolution of the case -- e.g., a discussion of implied consent doctrine.
To Agent TWB, the trial counsel asked, under what authority was the AFOSI asking for the hair specimen from the appellant. TWB replied: “Initially we tried consent. And he didn’t consent to . . . us collecting [his] body hair.”
To former Agent RF, the trial counsel asked if they collected any hair. Agent RF said that, after they obtained a search authorization, they went to see the appellant’s first sergeant. The first sergeant told them the appellant was en route to see his attorney. They asked the first sergeant to call him and tell him to turn around. “He allowed Airman Moran to continue to see his -- see his attorney.”
The trial counsel also asked RF what the appellant’s explanation for shaving off all his hair was. The agent didn’t ask. Not deterred by what he knew would be the answer, the trial counsel plunged onward: “You didn’t inquire?” RF responded: "The reason I didn’t inquire was I felt that was an incriminating question and . . . he’d already asked for counsel.”
The trial counsel asked a local police officer questions about an accident in which the appellant was involved. The officer said that he offered the appellant a consent form to draw blood, but he refused to sign it.
In closing argument, the trial counsel offered the following:
Now these drug charges. What’s probably certainly close to some of the most damning evidence that you have in this courtroom today is the fact that on March 20th he is called into [the] investigations office . . . . The OSI says, “we would like to take your hair.” He says, “No, thank you. I want to speak to my attorney first.”The Court summarizes the posture of the case at trial:
Though Appellant requested and received an instruction on his right to remain silent, defense counsel did not object to either the witnesses’ or trial counsel’s statements. Further, there were no sua sponte curative or limiting instructions to the members mitigating any potential prejudice.You have to wonder if the defense counsel and the judge were sleeping or engaged in a particularly difficult New York Times Sodoku puzzle.
All 5 judges decide the trial counsel's argument was error and assume without deciding that the witness testimony was also error. Nevertheless, any error was harmless beyond a reasonable doubt. Chief Judge Effron and Judge Erdmann write separately to voice concerns over matters in Judge Baker’s decision that they think are unnecessary for the resolution of the case -- e.g., a discussion of implied consent doctrine.
Judge Fumbles DuBay Hearing
The appellant’s urine specimen, from a unit drug inspection, tested positive for ecstasy. It was clear from his opening statement that the appellant would challenge the reliability of the urinalysis testing procedure and results, as well as claim innocent ingestion -- his girlfriend would testify that he had a headache and she got what she thought was aspirin from another patron of the bar they were at, and gave it to the appellant. United States v. Key, No. 04-0216/AF (C.A.A.F. Jun. 22, 2007).
The Government had SSgt L, an undercover informant, testify that the appellant appeared nervous and agitated at the urine specimen collection site and, that about 3 weeks before that he had telephoned her and invited her to use ecstasy with him in another airman’s apartment. She did not go when the AFOSI couldn’t support her.
Maj Martin, the appellant’s defense counsel “vigorously” cross-examined her, asking whether she had received any compensation from AFOSI. She said they gave her expense money on more than one occasion. Maj Martin introduced documents showing AFOSI paid her just over $200. After SSgt L had testified in 4 courts-martial, including the appellant’s, AFOSI paid SSgt L $250 “for a job well done.”
Months later, Maj Martin, then assigned as an asst SJA at another location, learned from an AFOSI agent that SSgt L had received the $250 after the trial. He challenged SSgt L's credibility at trial and at his pretrial interview with her. Eventually, the CAAF ordered affidavits and then a post-trial hearing. The judge who conducted the hearing apparently didn’t understand what she was supposed to be doing. She refused to allow Maj Martin to testify because his testimony lacked relevance, the likelihood of confusion, and apparently concerns for the attorney-client privilege.
The Air Force Court of Criminal Appeals granted the defense motion to submit Maj Martin’s affidavit and concluded that any issue as to his testifying at the DuBay hearing was thus moot. The AFCCA affirmed. In his affidavit, Maj Martin was unsure of the exact wording of questions he put to SSgt L prior to trial, but he thought they would have been sufficient to elicit that she had been originally offered an incentive payment by the AFOSI but turned it down. Of course the AFOSI claimed they never discussed other than expense payments until they gave her the money months after the appellant’s trial.
Writing for a majority of 3, Judge Stucky concluded that the military judge erred in not allowing Maj Martin to testify: (1) of course his testimony was relevant; (2) who did the judge think would be confused by his testimony? -- the appellate courts?; and, if any attorney-client privileged issues arose, the appellant could waive them.
Nevertheless, the majority concluded the error was harmless. They considered Maj Martin’s affidavit and concluded it did not provide a significant basis to impeach SSgt L as Maj Martin could not be sure what he asked her. SSgt L's affidavit and testimony at the DuBay hearing were the only evidence she even knew there was such a thing as incentive payments and there was absolutely no evidence she ever took an incentive payment before trial.
Judge Ryan, joined by Chief Judge Effron, dissented. They want the case sent back so that the DuBay hearing originally ordered could be done correctly. It appears the court-martial was held in 2001. Although I can understand Judge Ryan's position, I can't imagine a DuBay hearing some six years after the fact would render any reliable evidence of what happened in 2001. Would Maj Martin be able to remember more now than when he composed his affidavit? I doubt it.
The Government had SSgt L, an undercover informant, testify that the appellant appeared nervous and agitated at the urine specimen collection site and, that about 3 weeks before that he had telephoned her and invited her to use ecstasy with him in another airman’s apartment. She did not go when the AFOSI couldn’t support her.
Maj Martin, the appellant’s defense counsel “vigorously” cross-examined her, asking whether she had received any compensation from AFOSI. She said they gave her expense money on more than one occasion. Maj Martin introduced documents showing AFOSI paid her just over $200. After SSgt L had testified in 4 courts-martial, including the appellant’s, AFOSI paid SSgt L $250 “for a job well done.”
Months later, Maj Martin, then assigned as an asst SJA at another location, learned from an AFOSI agent that SSgt L had received the $250 after the trial. He challenged SSgt L's credibility at trial and at his pretrial interview with her. Eventually, the CAAF ordered affidavits and then a post-trial hearing. The judge who conducted the hearing apparently didn’t understand what she was supposed to be doing. She refused to allow Maj Martin to testify because his testimony lacked relevance, the likelihood of confusion, and apparently concerns for the attorney-client privilege.
The Air Force Court of Criminal Appeals granted the defense motion to submit Maj Martin’s affidavit and concluded that any issue as to his testifying at the DuBay hearing was thus moot. The AFCCA affirmed. In his affidavit, Maj Martin was unsure of the exact wording of questions he put to SSgt L prior to trial, but he thought they would have been sufficient to elicit that she had been originally offered an incentive payment by the AFOSI but turned it down. Of course the AFOSI claimed they never discussed other than expense payments until they gave her the money months after the appellant’s trial.
Writing for a majority of 3, Judge Stucky concluded that the military judge erred in not allowing Maj Martin to testify: (1) of course his testimony was relevant; (2) who did the judge think would be confused by his testimony? -- the appellate courts?; and, if any attorney-client privileged issues arose, the appellant could waive them.
Nevertheless, the majority concluded the error was harmless. They considered Maj Martin’s affidavit and concluded it did not provide a significant basis to impeach SSgt L as Maj Martin could not be sure what he asked her. SSgt L's affidavit and testimony at the DuBay hearing were the only evidence she even knew there was such a thing as incentive payments and there was absolutely no evidence she ever took an incentive payment before trial.
Judge Ryan, joined by Chief Judge Effron, dissented. They want the case sent back so that the DuBay hearing originally ordered could be done correctly. It appears the court-martial was held in 2001. Although I can understand Judge Ryan's position, I can't imagine a DuBay hearing some six years after the fact would render any reliable evidence of what happened in 2001. Would Maj Martin be able to remember more now than when he composed his affidavit? I doubt it.
The Need for CAAF
Despite the protests of the military services, Congress decided that it was necessary to have a civilian court sitting at the top of the military justice system. After what many thought was a military justice debacle during World War II, Congress just didn’t trust the military to get the justice system right. Although I often criticize the Court, there is a need for the CAAF and United States v. Albaaj, 07-0002/AR (C.A.A.F. Jun. 21, 2007) is an example of why.
As part of voir dire, the military judge asked the members if any of them knew “Emad,” a name that appeared in some of the specifications. Maj Melcher said he did not. Emad, the accused’s brother testified for 21 pages in the record on findings and briefly on sentencing. After trial, Emad reported that he knew Maj Melcher and their contact had been less than cordial.
The evidence from the DuBay hearing shows that Emad worked on the installation and Maj Melcher had sent some rather strong emails denigrating Emad’s performance and questioning his honesty. The accused reported his brother’s antagonistic relationship with Maj Melcher to the convening authority. The convening authority granted no relief.
The Army Court of Criminal Appeals ordered a post-trial DuBay hearing. Maj Melcher admitted that he recognized Emad when Emad took the stand and, although he initially had a negative opinion of Emad, his opinion had changed and he had a favorable opinion of him before trial. The judge conducting the hearing determined there was no basis upon which to challenge Maj Melcher for cause. The ACCA affirmed.
This was a serious case. The appellant was convicted of a number of offenses including sodomy, assault with a means likely to produce death or grievous bodily harm, indecent acts, and making a false official statement. The approved sentence included a DD and 10 years confinement. The military judge and the ACCA tried to save a case that could not be saved. This is one that is so obvious, the base SJA should have seen the writing on the wall and convinced the convening authority to order a new trial.
I see the importance of this case as affirming that a court member has a continuing duty of candor to the court and, whether told to or not, must correct his voir dire answers when he learns they were not accurate. The Court found Maj Melcher's failure to inform the trial court he knew Emad to be juror misconduct requiring reversal of the conviction.
The Court employed the two-part test from United States v. Mack, 41 M.J. 51, 55 (C.M.A. 1994) to resolve the issue: A party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. The Court cites to R.C.M. 912(f)(1)(N) as the valid basis for a challenge for cause, but doesn’t quote it or explain it. Instead, the opinion is about implied bias and actual bias. R.C.M. 912(f)(1) states that a “member shall be excused for cause whenever it appears that the member: (N) Should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality.” I’d say Maj Melcher sitting on the court would impair having the court-martial free from substantial doubt as to its fairness and impartiality.
That should end the case. Does any one have any clues as to why the CAAF is so enamored of the actual and implied bias analysis and refuses to discuss R.C.M. 912?
As part of voir dire, the military judge asked the members if any of them knew “Emad,” a name that appeared in some of the specifications. Maj Melcher said he did not. Emad, the accused’s brother testified for 21 pages in the record on findings and briefly on sentencing. After trial, Emad reported that he knew Maj Melcher and their contact had been less than cordial.
The evidence from the DuBay hearing shows that Emad worked on the installation and Maj Melcher had sent some rather strong emails denigrating Emad’s performance and questioning his honesty. The accused reported his brother’s antagonistic relationship with Maj Melcher to the convening authority. The convening authority granted no relief.
The Army Court of Criminal Appeals ordered a post-trial DuBay hearing. Maj Melcher admitted that he recognized Emad when Emad took the stand and, although he initially had a negative opinion of Emad, his opinion had changed and he had a favorable opinion of him before trial. The judge conducting the hearing determined there was no basis upon which to challenge Maj Melcher for cause. The ACCA affirmed.
This was a serious case. The appellant was convicted of a number of offenses including sodomy, assault with a means likely to produce death or grievous bodily harm, indecent acts, and making a false official statement. The approved sentence included a DD and 10 years confinement. The military judge and the ACCA tried to save a case that could not be saved. This is one that is so obvious, the base SJA should have seen the writing on the wall and convinced the convening authority to order a new trial.
I see the importance of this case as affirming that a court member has a continuing duty of candor to the court and, whether told to or not, must correct his voir dire answers when he learns they were not accurate. The Court found Maj Melcher's failure to inform the trial court he knew Emad to be juror misconduct requiring reversal of the conviction.
The Court employed the two-part test from United States v. Mack, 41 M.J. 51, 55 (C.M.A. 1994) to resolve the issue: A party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. The Court cites to R.C.M. 912(f)(1)(N) as the valid basis for a challenge for cause, but doesn’t quote it or explain it. Instead, the opinion is about implied bias and actual bias. R.C.M. 912(f)(1) states that a “member shall be excused for cause whenever it appears that the member: (N) Should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality.” I’d say Maj Melcher sitting on the court would impair having the court-martial free from substantial doubt as to its fairness and impartiality.
That should end the case. Does any one have any clues as to why the CAAF is so enamored of the actual and implied bias analysis and refuses to discuss R.C.M. 912?
CAAF Dump 2
In what may be the final dump of the year, the Court released 8 opinions today.
| U.S. v. Cabrera-Frattini | 07-5001/MC(PDF) | Jun 22, 2007 | |
| U.S. v. Resch | 06-0863/AR(PDF) | Jun 22, 2007 | |
| U.S. v. Brown | 06-0857/AF(PDF) | Jun 22, 2007 | |
| U.S. v. Erickson | 06-0715/AF(PDF) | Jun 22, 2007 | |
| U.S. v. Leedy | 06-0567/AF(PDF) | Jun 22, 2007 | |
| U.S. v. Harrow | 06-0474/AF(PDF) | Jun 22, 2007 | |
| U.S. v. Moran | 06-0207/AF(PDF) | Jun 22, 2007 | |
| U.S. v. Key | 04-0216/AF(PDF) | Jun 22, 2007 |
CAAF Term of Court
On 21 June 2007, the CAAF announced a new term of court. The term of court that beings on 1 October 2007 will end on 31 August 2008. Thereafter, all terms will begin on 1 September and end on 31 August. No explanation for the change was provided. There must be a CAAF expert out there who knows. Would the esteemed Colonel Sullivan of CAAFlog care to venture an opinion?
CAAFlog Victorious
Sacramentum doffs his cap to Colonel Dwight Sullivan of CAAFlog for being first to complete postings on all six of the opinions CAAF released yesterday. Now he needs to get a life and let me make a comeback.
21 June 2007
Wrongful Introduction, Art. 112a
In a 3-2 split, the Court held that to be guilty of the Article 112a, UCMJ, offense of wrongful introduction of a controlled substance on to a military installation the accused had to know that he possessed the controlled substance and know that he transported the drugs onto a military installation. United States v. Thomas, No. 06-0350/NA (C.A.A.F. Jun. 21, 2007).
The appellant was stopped on a military installation for making an illegal U-turn about an hour after he smoked a marijuana cigarette. During a subsequent search of his vehicle, a bag containing a trace amount of marijuana was discovered. United States v. Thomas, NMCCA 200401690 (N-M. Ct. Crim. App. Dec. 19, 2005). The appellant pled guilty in a special court-martial of physically controlling an automobile while impaired by marijuana (Article 111, UCMJ) and wrongful introduction of marijuana on a military installation (Article 112a). In a stipulation of fact, the parties agreed that the appellant "did not pass through a security gate and was unaware that he was driving on military property." In light of the stipulation, the military judge was reluctant to accept the plea. Nevertheless after considering the issue, he decided that the only knowledge required for the offense of wrongful introduction was knowledge of the presence of the drug. The NMCCA affirmed.
Writing for the majority, Judge Stucky accepts the elements of the offense as explained by the President in the MCM pt. IV, ¶ 37b(4): (1) that the accused introduced the drugs onto an installation and (2) the introduction was wrongful. He notes that in possession cases the Court has required knowledge of the presence of the substance and knowledge of its contraband nature. Citing United States v. Mance, 26 M.J. 244, 253-54 (C.M.A. 1988). Although left unstated, Judge Stucky seems to rely on the analogy: if knowledge of the presence of the substance and knowledge of the nature of the substance is required in a possession case, then in an introduction case knowledge is required that the accused was introducing the drug on the installation.
Judge Stucky cites the Military Judges’ Benchbook in support -- or at least he endorses it as a correct statement of the law. But while Judge Stucky adopts the President’s two-element test for the offense, the Benchbook claims there are four elements.
Both of the Court’s Marines dissent, but do so in separate opinions. Both rely on a statutory interpretation of Article 112a, but Judge Baker’s is more difficult to understand. Judge Baker begins well, pointing out that “different elements within a statute can require different measures of intent.” But then the wheels start to come off. Without any citation he states: “In the context of the UCMJ, it is well-established that, unless otherwise precluded from doing so, the President can define elements of offenses pursuant to Congress’s delegation of authority under Article 36, UCMJ, provided that the exercise of such authority is neither contrary to or inconsistent with the provisions of the UCMJ.” As noted by Colonel Sullivan at CAAFlog, the CAAF has long held that the President’s rule-making authority under Article 36 does not extend to matters of substantive criminal law, like the elements of a statutory offense. United States v. Mance, 26 M.J. 244, 252 (C.M.A. 1988) (citing Ellis v. Jacob, 26 M.J. 90, 92-93 (C.M.A. 1988)). It is the function of courts to define elements of a statutory offense. Judge Baker adopts the President’s definition of the term “wrongful” -- without legal justification or authorization -- and decides that the only knowledge required is that the accused possessed the controlled substance.
Judge Ryan’s dissent is shorter and is consistent with her other opinions -- let’s look to the words of the statute first. She notes that wrongful, as used in terms of Article 112a, and its predecessors, has required “an accused’s knowledge of the existence of the drug or ‘awareness or consciousness of the physical presence of the drug on his person.’” Quoting from United States v. Hughes, 17 C.M.R. 374, 377 (C.M.A. 1954).
As Colonel Sullivan notes, it is peculiar that the question the CAAF answers in this decision hasn’t been answered before. And although I know he doesn’t mean it, he says he doesn’t care about the decision “since the majority tells us that possession is an LIO of introduction and the maximum punishment for the two offenses is the same. So Seaman Recruit Thomas manages to win his appeal without actually winning anything.”
Although the opinion did say the maximum punishment for the two offenses was the same, I don’t think that is quite correct. Unless the MCM has changed, they are only the same if the possession is of more than 30 grams. The NMCCA opinion makes it clear that the appellant only possessed “a trace amount.” For possession of less than 30 grams of marijuana, the max is DD, 2 years. For introduction of any amount, the max is DD, 5 years. MCM pt. IV, ¶ 37e.
Article 112a has caused more trouble than any other statute in the UCMJ -- even more than Articles 133 and 134. And the CAAF and CMA opinions on it have been disasters. Most of us, I hope all of us, could agree that Congress meant that an accused have knowledge that he possessed contraband before he could be convicted of any offense under Article 112a. But did we really need a convoluted opinion like Mance to do it?
While not an overwhelming fan of the Model Penal Code, it is at least instructive in suggesting that use of terms such as wrongful are not helpful or useful and that the mens rea of each element of an offense should be spelled out.
The appellant was stopped on a military installation for making an illegal U-turn about an hour after he smoked a marijuana cigarette. During a subsequent search of his vehicle, a bag containing a trace amount of marijuana was discovered. United States v. Thomas, NMCCA 200401690 (N-M. Ct. Crim. App. Dec. 19, 2005). The appellant pled guilty in a special court-martial of physically controlling an automobile while impaired by marijuana (Article 111, UCMJ) and wrongful introduction of marijuana on a military installation (Article 112a). In a stipulation of fact, the parties agreed that the appellant "did not pass through a security gate and was unaware that he was driving on military property." In light of the stipulation, the military judge was reluctant to accept the plea. Nevertheless after considering the issue, he decided that the only knowledge required for the offense of wrongful introduction was knowledge of the presence of the drug. The NMCCA affirmed.
Writing for the majority, Judge Stucky accepts the elements of the offense as explained by the President in the MCM pt. IV, ¶ 37b(4): (1) that the accused introduced the drugs onto an installation and (2) the introduction was wrongful. He notes that in possession cases the Court has required knowledge of the presence of the substance and knowledge of its contraband nature. Citing United States v. Mance, 26 M.J. 244, 253-54 (C.M.A. 1988). Although left unstated, Judge Stucky seems to rely on the analogy: if knowledge of the presence of the substance and knowledge of the nature of the substance is required in a possession case, then in an introduction case knowledge is required that the accused was introducing the drug on the installation.
Judge Stucky cites the Military Judges’ Benchbook in support -- or at least he endorses it as a correct statement of the law. But while Judge Stucky adopts the President’s two-element test for the offense, the Benchbook claims there are four elements.
Both of the Court’s Marines dissent, but do so in separate opinions. Both rely on a statutory interpretation of Article 112a, but Judge Baker’s is more difficult to understand. Judge Baker begins well, pointing out that “different elements within a statute can require different measures of intent.” But then the wheels start to come off. Without any citation he states: “In the context of the UCMJ, it is well-established that, unless otherwise precluded from doing so, the President can define elements of offenses pursuant to Congress’s delegation of authority under Article 36, UCMJ, provided that the exercise of such authority is neither contrary to or inconsistent with the provisions of the UCMJ.” As noted by Colonel Sullivan at CAAFlog, the CAAF has long held that the President’s rule-making authority under Article 36 does not extend to matters of substantive criminal law, like the elements of a statutory offense. United States v. Mance, 26 M.J. 244, 252 (C.M.A. 1988) (citing Ellis v. Jacob, 26 M.J. 90, 92-93 (C.M.A. 1988)). It is the function of courts to define elements of a statutory offense. Judge Baker adopts the President’s definition of the term “wrongful” -- without legal justification or authorization -- and decides that the only knowledge required is that the accused possessed the controlled substance.
Judge Ryan’s dissent is shorter and is consistent with her other opinions -- let’s look to the words of the statute first. She notes that wrongful, as used in terms of Article 112a, and its predecessors, has required “an accused’s knowledge of the existence of the drug or ‘awareness or consciousness of the physical presence of the drug on his person.’” Quoting from United States v. Hughes, 17 C.M.R. 374, 377 (C.M.A. 1954).
As Colonel Sullivan notes, it is peculiar that the question the CAAF answers in this decision hasn’t been answered before. And although I know he doesn’t mean it, he says he doesn’t care about the decision “since the majority tells us that possession is an LIO of introduction and the maximum punishment for the two offenses is the same. So Seaman Recruit Thomas manages to win his appeal without actually winning anything.”
Although the opinion did say the maximum punishment for the two offenses was the same, I don’t think that is quite correct. Unless the MCM has changed, they are only the same if the possession is of more than 30 grams. The NMCCA opinion makes it clear that the appellant only possessed “a trace amount.” For possession of less than 30 grams of marijuana, the max is DD, 2 years. For introduction of any amount, the max is DD, 5 years. MCM pt. IV, ¶ 37e.
Article 112a has caused more trouble than any other statute in the UCMJ -- even more than Articles 133 and 134. And the CAAF and CMA opinions on it have been disasters. Most of us, I hope all of us, could agree that Congress meant that an accused have knowledge that he possessed contraband before he could be convicted of any offense under Article 112a. But did we really need a convoluted opinion like Mance to do it?
While not an overwhelming fan of the Model Penal Code, it is at least instructive in suggesting that use of terms such as wrongful are not helpful or useful and that the mens rea of each element of an offense should be spelled out.
CAAF Dump
In a surprise, CAAF released 6 opinions today. By my calculations (more like guess work) that leaves only 10 opinions, give or take a few, to be released before the term ends on 30 September.
I will discuss three of the cases here. At first glance, the others seem more involved and will have to await comment after I have had a chance to review them more carefully.
United States v. Pflueger
| U.S. v. Albaaj | 07-0002/AR(PDF) | Jun 21, 2007 | |
| U.S. v. Jameson | 06-0881/MC(PDF) | Jun 21, 2007 | |
| U.S. v. Sanchez | 06-0617/AR(PDF) | Jun 21, 2007 | |
| U.S. v. Wilson | 06-0503/NA(PDF) | Jun 21, 2007 | |
| U.S. v. Thomas | 06-0350/NA(PDF) | Jun 21, 2007 | |
| U.S. v. Pflueger | 05-0139/MC(PDF) | Jun 21, 2007 |
I will discuss three of the cases here. At first glance, the others seem more involved and will have to await comment after I have had a chance to review them more carefully.
United States v. Pflueger
In United States v. Pflueger, the convening authority had suspended the BCD and ordered it remitted at the end of the 12-month suspension period unless it was sooner vacated. The NMCCA noted that it took almost a year for the CA action and three more years before the case arrived at the court. Finding the delays “both unreasonable and unconscionable,” the court determined that sentencing relief was appropriate under United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002)). But the relief the NMCCA ordered was to set aside the BCD that had already been remittedUnited States v. Wilson
Writing for a unanimous court, Chief Judge Effron guides the reader through the intricacies of Articles 58b, 60, 61, and 66, UCMJ. Court holds that the BCD no longer existed for the NMCCA to set aside. Case is remanded to the NMCCA to grant meaningful relief.
At a contested trial, the accused was convicted of rape, assault, adultery, and unlawful entry into a dwelling. The members sentenced Wilson toUnited States v. Sanchez
confinement for eight years, forfeiture of all pay and allowances, reduction to pay grade E-1, and a dishonorable discharge. The convening authority's action stated "that part of the sentence extending to confinement in excess of 3 years and 3 months is disapproved. The remainder of the sentence, with the exception of the Dishonorable Discharge, is approved and will be executed."
Judge Erdmann, writing for the majority, relies on R.C.M. 1107(f)(4): "The action shall state whether the sentence adjudged by the court-martial is approved." He concludes that "the convening authority used facially clear and unambiguous language that excluded the dishonorable discharge from approval." Slip op. at 5.
Chief Judge Effron and Judge Baker dissent separately. Chief Judge Effron argues that the action is incomplete and therefore should be sent back to the convening authority for a new action that would clarify whether the intended to approve the discharge. Judge Baker argues for the same results but contends the action is ambiguous rather than incomplete.
The appellant was convicted of the rape and forcible sodomy of his 8-year-old stepdaughter. On appeal he contested the admissibility of the testimony of the expert witness who testified that the victim was "concerning for abuse."
Judge Ryan, writing for the majority, concluded the military judge did not abuse her discretion in admitting the testimony of the expert. The case includes a discussion of the rules for expert testimony under the Military Rules of Evidence, Daubert, and Kumho Tire.
Chief Judge Effron concludes the expert witness's testimony was not based on a reliable methodology.
20 June 2007
Confrontation Clause Case
In a unanimous opinion authored by Judge Ryan, the CAAF held that a forgery affidavit was not testimonial such as to invoke the Constitution's Confrontation Clause. United States v. Foerster, No. 07-0093/AR (C.A.A.F. Jun. 20, 2007).
While deployed to Iraq, Sgt Porter reported to his chain of command and law enforcement authorities that someone had forged his signature to some of his checks and cashed them. When he returned to the U.S., Sgt Porter's bank required him to file a forgery affidavit before they would reimburse him for the money that was taken from his account. Sgt Porter completed the form, which required him to swear to the fact that neither he nor an authorized signatory was responsible for the checks being signed or cashed and listed each check and the payee. The forgery affidavit did notify Sgt Porter that it would be stored at the bank and might be turned over the law enforcement. The accused was the payee on the checks.
By the time of trial, Sgt Porter was redeployed to Kuwait for training before heading into Iraq. Citing Sgt Porter's leadership role, his commander declined to return him to the U.S. for the trial.
The accused objected to the admission of the forgery document on hearsay and Confrontation Clause grounds. Trial was conducted before the recent Confrontation Clause cases of Crawford v. Washington, 541 U.S. 36 (2004) and Davis v. Washington, 126 S. Ct. 2266 (2006). The judge concluded that the forgery affidavit was a business record, that the business record exception to the hearsay rule is firmly rooted, so no further Confrontation Clause analysis was necessary. The ACCA affirmed.
The CAAF held that the Confrontation Clause applied only to testimonial evidence and this forgery affidavit was not testimonial. Using a variation of the analysis adopted by the Court in United States v. Rankin, 64 M.J. 348, 351 (C.A.A.F. 2007), for determining whether evidence was testimonial, the CAAF found that: (1) although later turned over to law enforcement the forgery affidavit was not elicited or made in response to a prosecution inquiry; (2) the document listed or catalogued objective facts and was not an accusatory statement; and (3) the primary purpose of the bank in eliciting the forgery affidavit was to protect itself from fraud by the account holder, and the primary purpose of Sgt Porter was to be reimbursed for the missing funds.
Concluding the Confrontation Clause did not bar admission of the document, the CAAF examined whether it was otherwise admissible. The Court held that the military judge was correct in determining it was admissible under the business records exception to the hearsay rule. Mil. R. Evid. 803(6).
Some commentators have speculated that evidence that passes Confrontation Clause analysis need not be analyzed under the hearsay rules. The Court didn't need to, and didn't, express an opinion on this issue.
While deployed to Iraq, Sgt Porter reported to his chain of command and law enforcement authorities that someone had forged his signature to some of his checks and cashed them. When he returned to the U.S., Sgt Porter's bank required him to file a forgery affidavit before they would reimburse him for the money that was taken from his account. Sgt Porter completed the form, which required him to swear to the fact that neither he nor an authorized signatory was responsible for the checks being signed or cashed and listed each check and the payee. The forgery affidavit did notify Sgt Porter that it would be stored at the bank and might be turned over the law enforcement. The accused was the payee on the checks.
By the time of trial, Sgt Porter was redeployed to Kuwait for training before heading into Iraq. Citing Sgt Porter's leadership role, his commander declined to return him to the U.S. for the trial.
The accused objected to the admission of the forgery document on hearsay and Confrontation Clause grounds. Trial was conducted before the recent Confrontation Clause cases of Crawford v. Washington, 541 U.S. 36 (2004) and Davis v. Washington, 126 S. Ct. 2266 (2006). The judge concluded that the forgery affidavit was a business record, that the business record exception to the hearsay rule is firmly rooted, so no further Confrontation Clause analysis was necessary. The ACCA affirmed.
The CAAF held that the Confrontation Clause applied only to testimonial evidence and this forgery affidavit was not testimonial. Using a variation of the analysis adopted by the Court in United States v. Rankin, 64 M.J. 348, 351 (C.A.A.F. 2007), for determining whether evidence was testimonial, the CAAF found that: (1) although later turned over to law enforcement the forgery affidavit was not elicited or made in response to a prosecution inquiry; (2) the document listed or catalogued objective facts and was not an accusatory statement; and (3) the primary purpose of the bank in eliciting the forgery affidavit was to protect itself from fraud by the account holder, and the primary purpose of Sgt Porter was to be reimbursed for the missing funds.
Concluding the Confrontation Clause did not bar admission of the document, the CAAF examined whether it was otherwise admissible. The Court held that the military judge was correct in determining it was admissible under the business records exception to the hearsay rule. Mil. R. Evid. 803(6).
Some commentators have speculated that evidence that passes Confrontation Clause analysis need not be analyzed under the hearsay rules. The Court didn't need to, and didn't, express an opinion on this issue.
19 June 2007
Ouch!!!
In United States v. Hollings, No. 07-0084/MC, issued today, CAAF took a polite swipe at the appellate defense counsel for being less than candid with the tribunal: "We are left to wonder whether we are reviewing a different record of trial." At 6.
The sole issue in the case was whether the military judge erred by failing to grant a defense challenge for cause against a chief warrant officer court member "who served as acting legal officer to the convening authority in appellant's case." According to Judge Baker, writing for a unanimous court, there was no evidence the CWO acted as a legal advisor to the convening authority on any case.
That all five judges signed on to such an unusual action should send a message to counsel. I doubt he will be citing this case on his resume.
I bet the oral argument was interesting.
The sole issue in the case was whether the military judge erred by failing to grant a defense challenge for cause against a chief warrant officer court member "who served as acting legal officer to the convening authority in appellant's case." According to Judge Baker, writing for a unanimous court, there was no evidence the CWO acted as a legal advisor to the convening authority on any case.
That all five judges signed on to such an unusual action should send a message to counsel. I doubt he will be citing this case on his resume.
I bet the oral argument was interesting.
18 June 2007
Air Force Cases
The Air Force Court of Criminal Appeals dumped a bunch of decisions on their web site. A large number of the opinions are per curiam, in which the court spends a couple of pages describing the law on the legal issue and a few facts, but then summarily dismisses the alleged error without really applying the law to the facts. So it is difficult to determine if the court decided the case correctly.
One such example is United States v. Davis, ACM 36490 (A.F. Ct. Crim. App. Jun. 13, 2007). The sole assignment of error was that the appellant's defense counsel was ineffective by failing to submit matters in clemency to the convening authority. The AFCCA notes the Strickland v. Washington, 466 U.S. 668, 687 (1984), standard for reviewing ineffectiveness of counsel: deficient performance and prejudice. The AFCCA resolves the case in the following two paragraphs:
In the second quoted paragraph, the AFCCA assumes arguendo that the appellant established that his counsel was deficient, but decides that the appellant failed to show any prejudice. The AFCCA does not cite to the applicable law on the subject. To show prejudice, the appellant must show what he and others would have produced for the convening authority to consider. United States v. Perez, 64 M.J. 239, 244 (C.A.A.F. 2006). If he presents what he wanted his counsel to submit to the convening authority, there is a pretty low threshold:
If the appellant did present the matters he allegedly asked his counsel to submit, I expect the CAAF may remand the case for a new clemency proceeding.
One such example is United States v. Davis, ACM 36490 (A.F. Ct. Crim. App. Jun. 13, 2007). The sole assignment of error was that the appellant's defense counsel was ineffective by failing to submit matters in clemency to the convening authority. The AFCCA notes the Strickland v. Washington, 466 U.S. 668, 687 (1984), standard for reviewing ineffectiveness of counsel: deficient performance and prejudice. The AFCCA resolves the case in the following two paragraphs:
As to the assignment of error, we have reviewed the record of trial, the assignment of error, and the government's answer thereto. The appellant was advised, on several occasions, of his right to submit post-trial matters for consideration by the convening authority. Furthermore, the appellant repeatedly acknowledged his understanding of that right. Although the appellant indicated in writing that he desired to submit matters, after an extension of time to submit such matters was granted, no matters were submitted and the convening authority took action. "Failure to submit matters within the time prescribed by this rule shall be deemed a waiver of the right to submit such mattes (sic)." Rule for Courts-Martial 1105(d)(1). Clearly, the appellant waived this right. The appellant has failed to meet his burden of proving deficient performance.
Assuming, arguendo, the appellant has overcome the presumption of competence of counsel, there is absolutely no evidence provided by the appellant, or otherwise, to support any finding of prejudice. Although the trial defense counsel submitted an affidavit and a number of memoranda, they are not necessary as the appellant has not met his burden on this issue.In the first quoted paragraph, the AFCCA seems to say the following: (1) the appellant had been told of, and acknowledged, his right to submit matters to the convening authority; (2) he did not timely submit such matters to the convening authority; (3) failure to submit matters is deemed a waiver of the right; and (4) therefore, the appellant's attorney's performance was not deficient. It seems the AFCCA conflated two separate legal principles. No one doubts that by failing to timely submit matters, the appellant waived clemency. The issue is whether his counsel failed to submit matters he should have and whether such a failure was ineffective assistance of counsel.
In the second quoted paragraph, the AFCCA assumes arguendo that the appellant established that his counsel was deficient, but decides that the appellant failed to show any prejudice. The AFCCA does not cite to the applicable law on the subject. To show prejudice, the appellant must show what he and others would have produced for the convening authority to consider. United States v. Perez, 64 M.J. 239, 244 (C.A.A.F. 2006). If he presents what he wanted his counsel to submit to the convening authority, there is a pretty low threshold:
However, because of the highly discretionary nature of the convening authority's clemency power, the threshold for showing prejudice is low. This Court will give an appellant the benefit of the doubt and find that "there is material prejudice to the substantial rights of an appellant if there is an error and the appellant 'makes some colorable showing of possible prejudice.'"United States v. Lee, 52 M.J. 51, 53 (C.A.A.F. 1999) (quoting United States v. Wheelus, 49 M.J. 283, 289 (1998) (quoting United States v. Chatman, 46 M.J. 321, 323-24 (1997)).
If the appellant did present the matters he allegedly asked his counsel to submit, I expect the CAAF may remand the case for a new clemency proceeding.
16 June 2007
Habeas Corpus
Army attorneys are wrestling with a recent ruling by a U.S. magistrate judge, that was upheld by a U.S. district judge, that seems to misapply the rules for habeas corpus hearings of court-martial convictions.
In 1953, the Supreme Court held that federal habeas petitions of court-martial convictions would he reviewed differently than federal or state habeas petitions. "[W]hen a military decision has dealt fully and fairly with an allegation raised in [a habeas petition], it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence." Burns v. Wilson, 346 U.S. 137, 142 (1953). "[W]hen an issue is briefed and argued before a military board of review, . . . the military tribunal has given the claim fair consideration, even though its opinion summarily disposed of the issue with a mere statement that it did not consider the issue meritorious or requiring discussion." Watson v. McCotter, 782 F.2d 143, 145 (10th Cir. 1986) (citation omitted).
After shooting a fellow soldier in Germany, Kurtis E. Armann was charged with attempted premeditated murder and conspiracy to commit premeditated murder. Prior to trial, a sanity board concluded that he was not suffering from a severe mental disease or defect at the time of the offenses and he was competent to assist in his defense. In March 1999, pursuant to a pretrial agreement that capped his confinement at 35 years, he pled guilty and was sentenced to a dishonorable discharge and confinement for 38 years. Armann v. Warden, Civil No. 04-118, 2007 U.s. Dist. LEXIS 39660 at *3-*4 (W.D. Pa. May 31, 2007).
The defense filed an appeal at the ACCA which included the apellant's personal submission under United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), alleging a lack of mental responsibility for the offenses. In support of that alleged error, the appellant noted 7 medications he had been prescribed upon arrival at the USDB. On 24 April 2001, the ACCA affirmed the findings and sentence and stated it had specifically considered the matters he had raised. Armann, 2007 U.S. Dist. LEXIS 39660 at *4-*5.
Armann's counsel filed a petition at the CAAF which included a Grostefon assertion slightly different from the one he alleged at ACCA. This time, he alleged "that he lacked sufficient mental capacity to stand trial because he had been administered toxic amounts of psychoactive substances from october 1998 through March 1999." Id. at *5. He also asked for a new trial based on newly discovered evidence. The Government did not file a separate brief, objected to the submission of new matters, and responded to allegations that the appellant was incapacitated by the drugs he was prescribed. The CAAF granted the motion to submit additional evidence, denied a petition for a new trial, and affirmed the findings and sentence as approved by the convening authority. Id. at *8-*9.
After briefly surveying the different manner in which the circuits have applied the Burns decision, the district judge focused on the 3d Circuit interpretation which is less deferential than that of the 10th Circuit. See Brosius v. Warden, 278 F.3d 239 (3d Cir.), cert. denied, 537 U.S. 947 (2002) (opinion by Judge Alito). In that case, the 3d Circuit concluded that "at least absent a challenge to the constitutionality of the statute under which the defendant was convicted, . . . inquiry in a military habeas case may not go further than our inquiry in a state habeas case." Armann, 2007 U.S. Dist. LEXIS 39660 at *18 (quoting Brosius, 278 F.3d at 245). The 3d Circuit applied the habeas standard set forth in 28 U.S.C. § 2254(d), "which conditions habeas relief on a showing that the prior adjudication of the claim 'resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,' or 'resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented.'" Id. at 19 (quoting Brosius, 278 F.3d at 245).
The district judge then quoted, approvingly, from the magistrate judge's decision ordering an evidentiary hearing. The magistrate judge decided that since the issue of the petitioner's competency was first litigated at the CAAF and the Government relied on its brief before the ACCA, the
My thoughts:
(1) When courts talk about an issue being fully briefed, they mean that the losing party had an opportunity to fully brief the issue. Who cares whether the winning party briefs the issue?
(2) Of course Armann didn't present much on the issue to the CAAF because the military attorney felt ethically obligated not to brief the issue.
(3) The district court's decision in this case is reminiscent of the CAAF's decisions regarding Suzuki/Sales. If the CCA's don't say the magic words -- the judges are sure that the sentence approved is no more than what the court members would have adjudged absent the error -- the CAAF remands. It looks like the CAAF failed to say the magic words acknowledging that they had considered the Grostefon issues. But why would the CAAF have to do so when they were deciding whether to grant the accused's petition for review? Of course the CAAF considered it before it denied review. Shouldn't there be a presumption that courts do what they are supposed to do?
(4) I think the District Court is just wrong on this one. As the circuits appear to use different standards, perhaps the Army should try to push for an appeal to resolve the issue. It would be nice if the Army let us know what they are thinking and doing about the case.
(5) I wonder how many military habeas cases are heard in PA, as opposed to KS, where the DB is located.
In 1953, the Supreme Court held that federal habeas petitions of court-martial convictions would he reviewed differently than federal or state habeas petitions. "[W]hen a military decision has dealt fully and fairly with an allegation raised in [a habeas petition], it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence." Burns v. Wilson, 346 U.S. 137, 142 (1953). "[W]hen an issue is briefed and argued before a military board of review, . . . the military tribunal has given the claim fair consideration, even though its opinion summarily disposed of the issue with a mere statement that it did not consider the issue meritorious or requiring discussion." Watson v. McCotter, 782 F.2d 143, 145 (10th Cir. 1986) (citation omitted).
After shooting a fellow soldier in Germany, Kurtis E. Armann was charged with attempted premeditated murder and conspiracy to commit premeditated murder. Prior to trial, a sanity board concluded that he was not suffering from a severe mental disease or defect at the time of the offenses and he was competent to assist in his defense. In March 1999, pursuant to a pretrial agreement that capped his confinement at 35 years, he pled guilty and was sentenced to a dishonorable discharge and confinement for 38 years. Armann v. Warden, Civil No. 04-118, 2007 U.s. Dist. LEXIS 39660 at *3-*4 (W.D. Pa. May 31, 2007).
The defense filed an appeal at the ACCA which included the apellant's personal submission under United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), alleging a lack of mental responsibility for the offenses. In support of that alleged error, the appellant noted 7 medications he had been prescribed upon arrival at the USDB. On 24 April 2001, the ACCA affirmed the findings and sentence and stated it had specifically considered the matters he had raised. Armann, 2007 U.S. Dist. LEXIS 39660 at *4-*5.
Armann's counsel filed a petition at the CAAF which included a Grostefon assertion slightly different from the one he alleged at ACCA. This time, he alleged "that he lacked sufficient mental capacity to stand trial because he had been administered toxic amounts of psychoactive substances from october 1998 through March 1999." Id. at *5. He also asked for a new trial based on newly discovered evidence. The Government did not file a separate brief, objected to the submission of new matters, and responded to allegations that the appellant was incapacitated by the drugs he was prescribed. The CAAF granted the motion to submit additional evidence, denied a petition for a new trial, and affirmed the findings and sentence as approved by the convening authority. Id. at *8-*9.
After briefly surveying the different manner in which the circuits have applied the Burns decision, the district judge focused on the 3d Circuit interpretation which is less deferential than that of the 10th Circuit. See Brosius v. Warden, 278 F.3d 239 (3d Cir.), cert. denied, 537 U.S. 947 (2002) (opinion by Judge Alito). In that case, the 3d Circuit concluded that "at least absent a challenge to the constitutionality of the statute under which the defendant was convicted, . . . inquiry in a military habeas case may not go further than our inquiry in a state habeas case." Armann, 2007 U.S. Dist. LEXIS 39660 at *18 (quoting Brosius, 278 F.3d at 245). The 3d Circuit applied the habeas standard set forth in 28 U.S.C. § 2254(d), "which conditions habeas relief on a showing that the prior adjudication of the claim 'resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,' or 'resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented.'" Id. at 19 (quoting Brosius, 278 F.3d at 245).
The district judge then quoted, approvingly, from the magistrate judge's decision ordering an evidentiary hearing. The magistrate judge decided that since the issue of the petitioner's competency was first litigated at the CAAF and the Government relied on its brief before the ACCA, the
"issue was not fully briefed or argued before the CAAF. Moreover, the CAAF's order affirming the ACCA's decision did not in any way acknowledge the comptetency issue.
. . . .
"Given the constitutional implications raised by Petitioner's competency argument . . . this Court is unwilling to imply that the competency issue was given full and fair consideration by the CAAF, without more concrete evidence of record to support such an implication."Id. at 21 (quoting the magistrate judge's decision).
My thoughts:
(1) When courts talk about an issue being fully briefed, they mean that the losing party had an opportunity to fully brief the issue. Who cares whether the winning party briefs the issue?
(2) Of course Armann didn't present much on the issue to the CAAF because the military attorney felt ethically obligated not to brief the issue.
(3) The district court's decision in this case is reminiscent of the CAAF's decisions regarding Suzuki/Sales. If the CCA's don't say the magic words -- the judges are sure that the sentence approved is no more than what the court members would have adjudged absent the error -- the CAAF remands. It looks like the CAAF failed to say the magic words acknowledging that they had considered the Grostefon issues. But why would the CAAF have to do so when they were deciding whether to grant the accused's petition for review? Of course the CAAF considered it before it denied review. Shouldn't there be a presumption that courts do what they are supposed to do?
(4) I think the District Court is just wrong on this one. As the circuits appear to use different standards, perhaps the Army should try to push for an appeal to resolve the issue. It would be nice if the Army let us know what they are thinking and doing about the case.
(5) I wonder how many military habeas cases are heard in PA, as opposed to KS, where the DB is located.
15 June 2007
Aiding the Enemy
Several publications, including the Starts and Stripes Middle East Edition, are reporting that charges against the former commander of the prison housing Saddam Hussein were referred to a general court-martial on 10 June and served on him on 12 June. Army Lt. Col William Steele is charged with aiding the enemy by allowing detainees to make unsupervised telephone calls, having an inappropriate relationship with an interpreter, failing to handle classified documents correctly, failing to obey an order, and possessing pornographic videos. It appears Lt. Col Steele is in pretrial confinement.
Unintended Consequences?
The June 2007 issue of the ABA Journal has an interesting article entitled "Judge v. Jury," by Jason Krause, in which Andy Leipold, a professor at the University of Illinois College of Law compared the acquittal rates of federal judges with that of federal juries. Using data from the Administrative Office of the U.S. Courts, Professor Leipold discovered that the conviction rates since 1946 have averaged 75% for juries and 73% for judges. But since 1946, the conviction rate for juries has been steadily climbing from just over 60% to around 90% in 2006. Meanwhile, the conviction rate for judges has had a more erratic history, but is trending downward from more than 90% in 1946 to about 65% in 1970 to above 85% in 1980, down to below 50% in 1995 and back up to about 63% in 2006. Professor Leipold "also discovered a correlation between judicial acquittal rates and the introduction of strict federal sentencing guidelines two decades ago." At 46. "In the 14 years from 1989 through 2002, the conviction rate of federal juries increased to 84 percent while that of federal judges decreased to 55 percent." At 47.
While it is an interesting theory, the statistics provided in a chart don't lead me to the same conclusion. The guidelines took effect in 1988, yet the decline between 1980 and 1995 was almost a straight line. Professor Leipold's theory does not seem to account for the decline in the conviction rate of federal judges from above 85% in 1980 to below 70% by the time the guidelines took effect in 1988.
I would hate to see sentencing guidelines in the military justice system. But I would not be surprised if some congressman attempted to introduce legislation to establish them. After all, military sentences often seem truly disparate, even after considering matters in aggravation and mitigation. I have always considered the military sentencing system one of its major flaws. Before the existence of military judges, court members had to determine sentences. But it makes no sense now. In the last 20 years, the court-martial rate has dropped significantly, and court members often lack experience sentencing. Judge alone sentencing would not be a panacea, but I would still expect more rational and consistent sentencing than we see today.
While it is an interesting theory, the statistics provided in a chart don't lead me to the same conclusion. The guidelines took effect in 1988, yet the decline between 1980 and 1995 was almost a straight line. Professor Leipold's theory does not seem to account for the decline in the conviction rate of federal judges from above 85% in 1980 to below 70% by the time the guidelines took effect in 1988.
I would hate to see sentencing guidelines in the military justice system. But I would not be surprised if some congressman attempted to introduce legislation to establish them. After all, military sentences often seem truly disparate, even after considering matters in aggravation and mitigation. I have always considered the military sentencing system one of its major flaws. Before the existence of military judges, court members had to determine sentences. But it makes no sense now. In the last 20 years, the court-martial rate has dropped significantly, and court members often lack experience sentencing. Judge alone sentencing would not be a panacea, but I would still expect more rational and consistent sentencing than we see today.
Not Double Jeopardy
An Associated Press report appearing at WRAL.com on 9 June, updated on 10 June, reports on an Article 32 investigation for a retired Army Master Sergeant who was recalled to active duty to face charges of murdering the wife and two children of an Air Force captain in 1985. According to the report, MSG Timothy B. Hennis was convicted of the offenses in 1986 and sentenced to death. The North Carolina Supreme Court overturned the conviction and he was acquitted at his second trial in 1989.
Apparently during a cold case review, investigators were able to perform DNA testing on evidence collected at the crime scene that linked the offense to MSG Hennis. Local prosecutors, barred by the Double Jeopardy Clause from retrying the case, turned the case over to the military. The Article 32 investigating officer recommended trial by court-martial.
Apparently during a cold case review, investigators were able to perform DNA testing on evidence collected at the crime scene that linked the offense to MSG Hennis. Local prosecutors, barred by the Double Jeopardy Clause from retrying the case, turned the case over to the military. The Article 32 investigating officer recommended trial by court-martial.
14 June 2007
Colonel Murphy
On 11 June, Spook86, at the blog In From the Cold, reported on the charges preferred against Colonel Michael D. Murphy, a brigadier general select and former commander of the Air Force Legal Operations Agency. The reported charges are as follows:
CHARGE I: Violation of UCMJ, Article 133
Specification 1: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, between on or about 31 May 2002 and on or about 30 November 2006, wrongfully and dishonorably compete for promotion within the Judge Advocate General's Corps knowing he did not possess the required qualifications of a Judge Advocate, which was conduct unbecoming an officer and gentleman.
Specification 2: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, at or near Washington D.C., between on or about 31 May 2002 and on or about 30 January 2005, wrongfully and dishonorably accept the position and perform duties as General Counsel for the White House Military Office and provide legal advice without a license, which was conduct unbecoming an officer and gentleman.
Specification 3: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, at or near Maxwell Air Force Base, Alabama, between on or about 31 January 2005 and on or about 11 July 2005, wrongfully and dishonorably accept the position and perform duties as Commandant of the Air Force Judge Advocate General's School knowing he did not possess the required qualifications of a Judge Advocate, which was conduct unbecoming an officer and gentleman.
Specification 4: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did at or near Hickam Air Force Base, Hawaii, between on or about 12 July 2005 and on or about 21 September 2006, wrongfully and dishonorably accept the position and perform duties as Staff Judge Advocate for Pacific Air Force and provide legal advice without a license, which was conduct unbecoming an officer and gentleman.
Specification 5: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, between on or about 22 October 2006 and on or about 30 November 2006, wrongfully and dishonorably accept the position and perform duties as Commander of Air Force Legal Operations Agency knowing he did not possess the required qualifications of a Judge Advocate, which was conduct unbecoming an officer and gentleman.
Specification 6: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within North America, between on or about 31 May 2002 and on or about 30 November 2006, wrongfully and dishonorably present himself publicly as a United States Air Force Judge Advocate while performing trial advocacy training knowing he did not possess the required qualifications of a Judge Advocate, which was conduct unbecoming an officer and gentleman.
Specification 7: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, between on or about 31 May 2002 and on or about 30 November 2006, wrongfully and dishonorably file travel vouchers for expenses to which he was not entitled, which was conduct unbecoming an officer and gentleman.
Specification 8: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, from about 31 May 2002 to about 30 November 2006, wrongfully and dishonorably fail to notify Headquarters United States Air Force Professional Development Division of the termination of his license to practice law in the state of Louisiana, which was conduct unbecoming an officer and gentleman.
Specification 9: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, from about 31 May 2002 to about 30 November 2006, wrongfully and dishonorably fail to notify Headquarters United States Air Force Professional Development Division of the termination of his license to practice law in the state of Texas, which was conduct unbecoming an officer and gentleman.
Specification 10: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, from about 31 May 2002 to about 30 November 2006, wrongfully and dishonorably fail to notify Headquarters United States Air Force Professional Development Division of the termination of his license to practice law in the United States Fifth Federal Circuit, which was conduct unbecoming an officer and gentleman.
CHARGE II: Violation of UCMJ, Article 121
Specification 1: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, at or near Washington D.C., on divers occasions between on or about 31 May 2002 and on or about 31 January 2005, steal money, military property, of a value of more than $500, the property of the United States Air Force.
Specification 2: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, at or near Maxwell Air Force Base, Alabama, between on or about 5 June 2005 and on or about 15 June 2005, steal money, military property, of a value of more than $500, the property of the United States Air Force.
Specification 3: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, at or near Hickam Air Force Base, Hawaii, between on or about 11 August 2005 and on or about 18 August 2005, steal money, military property, of a value of more than $500, the property of the United States Air Force.
CHARGE III: Violation of UCMJ, Article 107
Specification 1: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, at or near Hickam Air Force Base, Hawaii, between on or about 21 August 2006 and on or about 30 November 2006, with intent to deceive, make an official statement in the Judge Advocate General's FLITE database, to wit: that he was licensed to practice law in Louisiana and Texas, which statement was false in that COLONEL MICHAEL D. MURPHY was not then licensed to practice law in Louisiana and Texas, and was then known by the said COLONEL MICHAEL D. MURPHY to be so false.
Specification 2: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, at or near Hickam Air Force Base, Hawaii, on or about 5 August 2005, with intent to deceive, make an official statement to Major General David A. Deptula, to wit: when requesting permission to teach an advocacy course at Louisiana State University School of Law, he stated "this keeps me current and fulfills my continuing legal education requirements" or words to that effect, which statement was false in that COLONEL MICHAEL D. MURPHY was not then licensed to practice law and had no continuing legal education requirements, and was then known by the said COLONEL MICHAEL D. MURPHY to be so false.
Charge IV: Violation of the UCMJ, Article 92
Specification 1: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., who knew or should have known of his duties at or near Washington D.C., from about 31 May 2002 to about 30 January 2005, on divers occasions, was derelict in the performance of those duties in that he willfully failed to refrain from using his Blanket Travel Orders to engage in unofficial travel, as it was his duty to do.
Specification 2: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, from about 31 May 2002 to about 30 November 2006, fail to obey a lawful general regulation, to wit: paragraph 2.1, Air Force Instruction 51-103, dated 1 March 1996, superseded by Air Force Instruction 51-103, dated 7 December 2004, by wrongfully failing to maintain compliance with the licensing requirements of a Federal court or the highest court of a U.S. state, territory or the District of Columbia such that he would then be currently eligible to engage in the active practice of law.
Specification 3: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, from about 31 May 2002 to about 30 November 2006, fail to obey a lawful general regulation, to wit: paragraph 2.2, Air Force Instruction 51-103, dated 1 March 1996, superseded by Air Force Instruction 51-103, dated 7 December 2004, by wrongfully failing to notify Headquarters United States Air Force Professional Development Division of the termination of his license to practice law in the state of Louisiana.
Specification 4: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, from about 31 May 2002 to about 30 November 2006, fail to obey a lawful general regulation, to wit: paragraph 2.2, Air Force Instruction 51-103, dated 1 March 1996, superseded by Air Force Instruction 51-103, dated 7 December 2004, by wrongfully failing to notify Headquarters United States Air Force Professional Development Division of the termination of his license to practice law in the state of Texas.
Specification 5: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, from about 31 May 2002 to about 30 November 2006, fail to obey a lawful general regulation, to wit: paragraph 2.2, Air Force Instruction 51-103, dated 1 March 1996, superseded by Air Force Instruction 51-103, dated 7 December 2004, by wrongfully failing to notify Headquarters United States Air Force Professional Development Division of the termination of his license to practice law in the United States Fifth Federal Circuit.
Specification 6: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., who knew or should have known of his duties within the United States, from about 31 May 2002 to about 30 November 2006, on divers occasions, was derelict in the performance of those duties in that he willfully failed to refrain from using his Government Travel Card for other than official travel related expenses, as it was his duty to do.
Charge V: Violation of the UCMJ, Article 86
Specification: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, on or about 5 August 2006, without authority, absent himself from his place of duty at which he was required to be, to wit: Headquarters Pacific Air Force Judge Advocate's office, located at 25 E. Street, Suite A-314, Hickam Air Force Base, Hawaii, and did remain so absent until on or about 13 August 2006.
The charges have been the subject of much speculation by the military justice community because it appeared the statute of limitations would make it impossible to charge him with any false statements he may have made when he entered the Air Force. Specification 1 of Charge I is intriguing -- competing for promotion to brigadier general when he knew he was not qualified for the job. Some JAG colonel, perhaps now retired, would have been promoted to brigadier general had not Colonel Murphy competed for the job.
Also interesting is specification 2 of Charge III. It alleges that he made a false official statement to Major General Deptula, one of the architects of the air campaign during the 1991 Gulf War, that by giving him permission to teach an advocacy course at LSU, Col Murphy would be able to keep current on his continuing legal education requirements to maintain the bar membership he is now alleged not to have had.
Spook86 opines that Col Murphy's "best defense may be an indictment of past Air Force procedures of certifying the professional credentials of its legal officers." I think that would be very difficult to pull off. If Col Murphy were to request officer members on the court, they would have to be senior colonels or generals. I just can't see them buying off on it. No matter what others think of them, I am sure the colonels and generals believe themselves to be men of honor. If they believe Col Murphy did what he is alleged to have done, they would be looking at an officer who hoped to join the generals' club after living a lie for more than 20 years.
Another interesting question is who will preside over the court-martial if there is one. In the past, the Air Force has been quick to farm courts-martial of JAG personnel to the Army. And I understand that at the time Col Murphy was removed from command, all the Air Force trial judges were in his chain of command.
CHARGE I: Violation of UCMJ, Article 133
Specification 1: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, between on or about 31 May 2002 and on or about 30 November 2006, wrongfully and dishonorably compete for promotion within the Judge Advocate General's Corps knowing he did not possess the required qualifications of a Judge Advocate, which was conduct unbecoming an officer and gentleman.
Specification 2: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, at or near Washington D.C., between on or about 31 May 2002 and on or about 30 January 2005, wrongfully and dishonorably accept the position and perform duties as General Counsel for the White House Military Office and provide legal advice without a license, which was conduct unbecoming an officer and gentleman.
Specification 3: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, at or near Maxwell Air Force Base, Alabama, between on or about 31 January 2005 and on or about 11 July 2005, wrongfully and dishonorably accept the position and perform duties as Commandant of the Air Force Judge Advocate General's School knowing he did not possess the required qualifications of a Judge Advocate, which was conduct unbecoming an officer and gentleman.
Specification 4: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did at or near Hickam Air Force Base, Hawaii, between on or about 12 July 2005 and on or about 21 September 2006, wrongfully and dishonorably accept the position and perform duties as Staff Judge Advocate for Pacific Air Force and provide legal advice without a license, which was conduct unbecoming an officer and gentleman.
Specification 5: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, between on or about 22 October 2006 and on or about 30 November 2006, wrongfully and dishonorably accept the position and perform duties as Commander of Air Force Legal Operations Agency knowing he did not possess the required qualifications of a Judge Advocate, which was conduct unbecoming an officer and gentleman.
Specification 6: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within North America, between on or about 31 May 2002 and on or about 30 November 2006, wrongfully and dishonorably present himself publicly as a United States Air Force Judge Advocate while performing trial advocacy training knowing he did not possess the required qualifications of a Judge Advocate, which was conduct unbecoming an officer and gentleman.
Specification 7: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, between on or about 31 May 2002 and on or about 30 November 2006, wrongfully and dishonorably file travel vouchers for expenses to which he was not entitled, which was conduct unbecoming an officer and gentleman.
Specification 8: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, from about 31 May 2002 to about 30 November 2006, wrongfully and dishonorably fail to notify Headquarters United States Air Force Professional Development Division of the termination of his license to practice law in the state of Louisiana, which was conduct unbecoming an officer and gentleman.
Specification 9: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, from about 31 May 2002 to about 30 November 2006, wrongfully and dishonorably fail to notify Headquarters United States Air Force Professional Development Division of the termination of his license to practice law in the state of Texas, which was conduct unbecoming an officer and gentleman.
Specification 10: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, from about 31 May 2002 to about 30 November 2006, wrongfully and dishonorably fail to notify Headquarters United States Air Force Professional Development Division of the termination of his license to practice law in the United States Fifth Federal Circuit, which was conduct unbecoming an officer and gentleman.
CHARGE II: Violation of UCMJ, Article 121
Specification 1: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, at or near Washington D.C., on divers occasions between on or about 31 May 2002 and on or about 31 January 2005, steal money, military property, of a value of more than $500, the property of the United States Air Force.
Specification 2: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, at or near Maxwell Air Force Base, Alabama, between on or about 5 June 2005 and on or about 15 June 2005, steal money, military property, of a value of more than $500, the property of the United States Air Force.
Specification 3: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, at or near Hickam Air Force Base, Hawaii, between on or about 11 August 2005 and on or about 18 August 2005, steal money, military property, of a value of more than $500, the property of the United States Air Force.
CHARGE III: Violation of UCMJ, Article 107
Specification 1: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, at or near Hickam Air Force Base, Hawaii, between on or about 21 August 2006 and on or about 30 November 2006, with intent to deceive, make an official statement in the Judge Advocate General's FLITE database, to wit: that he was licensed to practice law in Louisiana and Texas, which statement was false in that COLONEL MICHAEL D. MURPHY was not then licensed to practice law in Louisiana and Texas, and was then known by the said COLONEL MICHAEL D. MURPHY to be so false.
Specification 2: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, at or near Hickam Air Force Base, Hawaii, on or about 5 August 2005, with intent to deceive, make an official statement to Major General David A. Deptula, to wit: when requesting permission to teach an advocacy course at Louisiana State University School of Law, he stated "this keeps me current and fulfills my continuing legal education requirements" or words to that effect, which statement was false in that COLONEL MICHAEL D. MURPHY was not then licensed to practice law and had no continuing legal education requirements, and was then known by the said COLONEL MICHAEL D. MURPHY to be so false.
Charge IV: Violation of the UCMJ, Article 92
Specification 1: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., who knew or should have known of his duties at or near Washington D.C., from about 31 May 2002 to about 30 January 2005, on divers occasions, was derelict in the performance of those duties in that he willfully failed to refrain from using his Blanket Travel Orders to engage in unofficial travel, as it was his duty to do.
Specification 2: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, from about 31 May 2002 to about 30 November 2006, fail to obey a lawful general regulation, to wit: paragraph 2.1, Air Force Instruction 51-103, dated 1 March 1996, superseded by Air Force Instruction 51-103, dated 7 December 2004, by wrongfully failing to maintain compliance with the licensing requirements of a Federal court or the highest court of a U.S. state, territory or the District of Columbia such that he would then be currently eligible to engage in the active practice of law.
Specification 3: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, from about 31 May 2002 to about 30 November 2006, fail to obey a lawful general regulation, to wit: paragraph 2.2, Air Force Instruction 51-103, dated 1 March 1996, superseded by Air Force Instruction 51-103, dated 7 December 2004, by wrongfully failing to notify Headquarters United States Air Force Professional Development Division of the termination of his license to practice law in the state of Louisiana.
Specification 4: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, from about 31 May 2002 to about 30 November 2006, fail to obey a lawful general regulation, to wit: paragraph 2.2, Air Force Instruction 51-103, dated 1 March 1996, superseded by Air Force Instruction 51-103, dated 7 December 2004, by wrongfully failing to notify Headquarters United States Air Force Professional Development Division of the termination of his license to practice law in the state of Texas.
Specification 5: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, from about 31 May 2002 to about 30 November 2006, fail to obey a lawful general regulation, to wit: paragraph 2.2, Air Force Instruction 51-103, dated 1 March 1996, superseded by Air Force Instruction 51-103, dated 7 December 2004, by wrongfully failing to notify Headquarters United States Air Force Professional Development Division of the termination of his license to practice law in the United States Fifth Federal Circuit.
Specification 6: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., who knew or should have known of his duties within the United States, from about 31 May 2002 to about 30 November 2006, on divers occasions, was derelict in the performance of those duties in that he willfully failed to refrain from using his Government Travel Card for other than official travel related expenses, as it was his duty to do.
Charge V: Violation of the UCMJ, Article 86
Specification: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, on or about 5 August 2006, without authority, absent himself from his place of duty at which he was required to be, to wit: Headquarters Pacific Air Force Judge Advocate's office, located at 25 E. Street, Suite A-314, Hickam Air Force Base, Hawaii, and did remain so absent until on or about 13 August 2006.
The charges have been the subject of much speculation by the military justice community because it appeared the statute of limitations would make it impossible to charge him with any false statements he may have made when he entered the Air Force. Specification 1 of Charge I is intriguing -- competing for promotion to brigadier general when he knew he was not qualified for the job. Some JAG colonel, perhaps now retired, would have been promoted to brigadier general had not Colonel Murphy competed for the job.
Also interesting is specification 2 of Charge III. It alleges that he made a false official statement to Major General Deptula, one of the architects of the air campaign during the 1991 Gulf War, that by giving him permission to teach an advocacy course at LSU, Col Murphy would be able to keep current on his continuing legal education requirements to maintain the bar membership he is now alleged not to have had.
Spook86 opines that Col Murphy's "best defense may be an indictment of past Air Force procedures of certifying the professional credentials of its legal officers." I think that would be very difficult to pull off. If Col Murphy were to request officer members on the court, they would have to be senior colonels or generals. I just can't see them buying off on it. No matter what others think of them, I am sure the colonels and generals believe themselves to be men of honor. If they believe Col Murphy did what he is alleged to have done, they would be looking at an officer who hoped to join the generals' club after living a lie for more than 20 years.
Another interesting question is who will preside over the court-martial if there is one. In the past, the Air Force has been quick to farm courts-martial of JAG personnel to the Army. And I understand that at the time Col Murphy was removed from command, all the Air Force trial judges were in his chain of command.
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